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LITIGATING INDIGENOUS PEOPLES’ RIGHTS IN AFRICA: POTENTIALS, CHALLENGES AND LIMITATIONS

  • Jérémie Gilbert (a1)
Abstract

Adopting a comparative analysis, this article examines some recent litigation which has focused on indigenous peoples’ rights across the African continent. The aim is to explore both the potential and the challenges and limitations of litigation as a tool for supporting the rights of indigenous peoples. The article explores the extent to which a specific African jurisprudence is emerging on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development. It also focuses on the practical issues that arise when engaging with litigation in order to explore the extent to which litigation can contribute to the legal empowerment of some of the most marginalized indigenous communities in Africa.

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1 See International Work Group on Indigenous Affairs, at <http://www.iwgia.org/regions/africa>.

2 On the situation of indigenous peoples in Africa, see Laher, R and Oei, K Singí (eds), Indigenous People in Africa: Contestations, Empowerment and Group Rights (Africa Institute of South Africa 2014); Dersso, S (ed), Perspectives on the Rights of Minorities and Indigenous Peoples in Africa (PULP 2010).

3 Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities submitted in accordance with ‘Resolution on the Rights of Indigenous Populations/Communities in Africa adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005).

4 See Thornberry, F and Viljoen, F, Overview Report on the Constitutional and Legislative Protection of the Rights of Indigenous Peoples in 24 African Countries (International Labour Organization and African Commission on Human and Peoples’ Rights 2009).

5 van Genugten, W, ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’ (2010) 104(1) AJIL 29.

6 See Ngugi, J, ‘The Decolonisation-modernisation Interface and the Plight of Indigenous Peoples in Post-colonial Development Discourse in Africa’ (2002) 20 WisIntlLJ 289.

7 See Ndahinda, F Mukwiza, Indigenousness in Africa: A Contested Legal Framework for Empowerment of ‘Marginalized’ Communities (Springer 2011).

8 See G Wachira Mukundi and T Karjala, ‘Advocacy for indigenous peoples’ rights in Africa’ in Indigenous People in Africa: Contestations, Empowerment and Group Rights (n 2) 104.

9 African Commission on Human and Peoples’ Rights, Comm No 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2010).

10 See Gilbert, J, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60(1) ICLQ 245.

11 In March 2013 the Court issued an order of provisional measures in respect of the situation of the Ogiek of the Mau Forest in Kenya, prohibiting land transactions in the Mau Forest Reserve protected area and other actions likely to prejudice the Ogiek's claim. The case was heard in November 2014 and the case remains pending, with judgment scheduled for 2017.

12 Roy Sesana (First Applicant), Keiwa Setlhobogwa and 241 others, (Second and Further Applicants) v the Attorney General of the Republic of Botswana, High Court of Botswana (2006); and Matsipane Mosetlhanyene (First Appellant) and Gakenyatsiwe Matsipane (Second Appellant) v the Attorney General (Respondent), High Court of Botswana (27 January 2011).

13 Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC).

14 Consent Judgment and Decree, Uganda Land Alliance, Ltd. v Uganda Wildlife Auth., Misc Cause No 0001 of 2004 (High Court of Uganda at Mbale).

15 The case concerns the forced eviction of the San from the Etosha National Park. A demand for a class action is presently examined by the court, see <http://www.osisa.org/indigenous-peoples/namibia/haiom-set-make-legal-history-etosha-aboriginal-land-claim>.

16 See J Gilbert, Strategic Litigation Impacts on Indigenous Peoples’ Land Rights (Open Society, Justice Initiative, 2017).

17 Barume, A, Indigenous Peoples Land Rights in Africa (2nd rev edn, International Work Group for Indigenous Affairs 2015).

18 See Kingsbury, B, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’ (2001) 34 NYUJIntlL&Pol 189; Thornberry, P, ‘Confronting Racial Discrimination: A CERD Perspective’ (2005) 5(2) HRLRev 239.

19 See Barume, AK, ‘Responding to the Concerns of the African States’ in Charters, C, and Stavenhagen, R (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA 2009).

20 Central Kalahari Legal Case No MISCA 52/2002 in the Matter between Roy Sesana, First Applicant, Keiwa Setlhobogwa and 241 others, Second and Further Applicants, and the Attorney General High Court of Botswana (2006); High Court Civil Case No MAHLB 000 393–09 In the matter between Matsipane Mosetlhanyene, First Appellant, and Gakenyatsiwe Matsipane, Second Appellant, and the Attorney General Respondent (2011).

21 See Sapignoli, M and Hitchcock, R, ‘A Chronology of the Central Kalahari Game Reserve: Update III, 2002–2012’ (2013) 45 Botswana Notes and Records 52; and Hitchcock, R, Sapignoli, M, and Babchuk, W, ‘What about Our Rights? Settlements, Subsistence, and Livelihood Security among Central Kalahari San and Bakgalagadi’ (2011)15(1) IJHR 67.

22 Their case was first dismissed but went on appeal in to the High Court, see High Court of Botswana, Roy Sesana, Kiewa Setlhobogwa, & 241 Others v the Attorney General of Botswana, Case No 52 of 2002.

23 Botswana was one of the governments which derailed the process for the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2006.

24 CCJ 2006, Bundle 1A 104 (ExP32)—Letter from Minister Margaret Nasha to Ditshwanelo, dated 7 January 2002—as quoted in Sapignoli, M, ‘Dispossession in the Age of Humanity: Human Rights, Citizenship, and Indigeneity in the Central Kalahari’ (2015) 25(3) Anthropological Forum 285.

25 Sapignoli, M, ‘Indigeneity and the Expert: Negotiating Identity in the Case of the Central Kalahari Game Reserve’ (2009) 12 Law and Anthropology: Current Legal Issues 247.

26 ibid 267.

27 CCJ 2006, at 201.

28 On the role of ICERD and indigenous peoples, see Thornberry, P, Indigenous Peoples and Human Rights (Manchester University Press 2002) 199.

29 Hitchcock, Sapignoli and Babchuk (n 21) 63.

30 For detailed information about the Batwa, see Lewis, J, The Batwa Pygmies of the Great Lakes Region (MRG 2000); Woodburn, J, ‘Indigenous Discrimination: The Ideological Basis for Local Discrimination against Hunter-Gatherer Minorities in Sub-Saharan Africa’ (1997) 20(2) Ethical and Racial Studies 345; Jackson, D, Twa Women Twa Rights in the Great Lakes Region of Africa (Minority Rights Group International 2003); Nelson, J and Hossack, L (eds), From Principles to Practice: Indigenous Peoples and Protected Areas in Africa (Forest Peoples Programme 2003).

31 The Batwa's ancestral territory covers several areas of the Bwindi Impenetrable National Park, Mgahinga Gorilla National Park and Echuya Central Forest Reserve.

32 Berrang-Ford, L et al. , ‘Vulnerability of Indigenous Health to Climate Change: A Case Study of Uganda's Batwa Pygmies’ (2012) 75(6) Social Science & Medicine1067; Harper, S, ‘Social Determinants of Health for Uganda's Batwa’ (June 2012) Africa Portal 32.

33 See Kidd, C, ‘Inventing th “Pygmy”: Representing the “Other”, Presenting the “Self” (2009) 20(4) History and Anthropology 395.”

34 See C Kidd, ‘Development Discourse and the Batwa of South West Uganda: Representing the ‘‘Other’’: Presenting the ‘‘Self’’ (unpublished PhD thesis, Glasgow 2008) available at <http://theses.gla.ac.uk/169/> C Kidd and P Zaninka, ‘Securing Indigenous Peoples’ Rights in Conservation: A Review of South-West Uganda’ (Forest Peoples Programme and United Organisation for Batwa Development in Uganda 2008).

35 See K Kabananukye and D Kwagala, Culture, Minorities and Linguistic Rights in Uganda: The Case of The Batwa and The Ik (KHURIPEC Working Paper No 11); N Mukasa, ‘The Batwa Indigenous People in Uganda and their Detachment from Forest Livelihood: Land Eviction and Social Plight’ (2012) Yearbook on Humanitarian Action and Human Right 71; The Parliament of the Republic of Uganda, The Equal Opportunities Committee's Working Visit to Bundibugyo and Kisoro Report (Government of Uganda 2007).

36 Report of the African Commission Working Group of Experts on Indigenous Population/Communities submitted in accordance with the ‘Resolution on the rights of indigenous peoples/communities in Africa’ and adopted by the African Commission at its 28th ordinary session in November 2003 and published in 2005.

37 African Commission on Human and Peoples’ Rights, Report of the African Commission's Working Group of Experts on Indigenous Populations Communities, submitted in accordance with the ‘Resolution on the Rights of Indigenous Populations/Communities in Africa’, adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005) 92–3.

38 See Gilbert, J and Couillard, V, ‘International Law and Land Rights in Africa: The shift from States’ Territorial Possessions to Indigenous Peoples’ Ownership Rights’ in Home, R (ed), Essays in African Land Law (Pretoria University Press 2011) 47.

39 See Gilbert, J, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (2nd edn, Brill, 2016).

40 The Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-AmCtHR (ser C) No 79 (2001); Moiwana Village v Suriname, Inter-AmCtHR (ser C) No 124 (2005); Yakye Axa Indigenous Community v Paraguay Inter-AmCtHR (ser C) No 125 (2005); Sawhoyamaxa Indigenous Community v Paraguay (2006); Case of the Saramaka People v Suriname (ser C) No 172 (2007); Xákmok Kásek Indigenous Community v Paraguay (ser C) No 214 (2010); Kichwa People of Sarayaku v Ecuador (ser C) No 245 (2012); Case of the Kaliña and Lokono Peoples v Suriname (2015).

41 See Imai, S, Richardson, BJ and McNeil, K, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing 2009).

42 For a detailed and critical analysis, see McHugh, P, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (OUP 2011).

43 See case of Amodu Tijani v The Secretary of Southern Nigeria, 2 AC 399 (1921); In re Southern Rhodesia [1919] AC 211, 223—Privy Council.

44 See Chan, TM, ‘The Richtersveld Challenge: South Africa Finally Adopts Aboriginal Title’ in Indigenous Peoples Rights in Southern Africa’ in Hitchcock, R and Vinding, D (eds), Indigenous Peoples’ Rights in Southern Africa (International Work Group for Indigenous Affairs 2004) 114–30.

45 The Ritchersveld Community and Others v Alexkor Ltd and the Government of South Africa, Case No 488/2001, para 8 (24 March 2003).

46 ibid, para 8.

47 ibid, para 9.

48 ibid, para 27.

49 Alexkor Limited and the Government of South Africa v The Ritchersveld Community and Others, Case CCT 19/03, at 51 (14 October 2003).

50 Statement from Judge Phumpahi, Central Kalahari Legal Case No MISCA 52/2002 in the Matter between Roy Sesana, First Applicant, Keiwa Setlhobogwa and 241 others, Second and Further Applicants, and the Attorney General High Court of Botswana (2006).

51 More recently in 2014, five residents have lodged a new claim for the recognition of their right to hunt within the reserve, as without the possibility to hunt life in the reserve is impossible.

52 Final working paper prepared by the Special Rapporteur, Mrs E-I A Daes, ‘Indigenous Peoples and Their Relationship to Land’ UN Doc E/CN.4/Sub.2/2001/21 (2001) at 38.

53 See McHugh, P, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (OUP 2011).

54 P McHugh, personal communication during the Half-Day Workshop on ‘Adjudication and Indigenous Peoples’ Queen Mary University (27 January 2016).

55 See Young, LA and Sing'Oei, K, Land, Livelihoods and Identities: Inter-Community Conflicts in East Africa (MRG 2011).

56 See Human Rights Committee: Ivan Kitok v Sweden, Comm No 197/1985, Report of the Human Rights Committee, GAOR, 43th Sess, Supp No 40 (A/43/40); Lubicon Lake Band v Canada, Comm No 167/1984 (26 March 1990), UN Doc Supp No 40 (A/45/40) at 1 (1990); Hopu and Bessert v France, Comm No 549/1993, UN Doc CPR/C/60/D/549/1993/Rev.1 (29 December 1997).

57 See M Sapignoli and R Hitchcock, People, Parks, and Power: The Ethics of Conservation-Related Resettlement (forthcoming).

58 See Blaser, M, Feit, HA and McRae, G (eds), In the Way of Development: Indigenous Peoples, Life Projects and Globalization (Zed/IDRC 2004).

59 Also worth noting that even though mining was not put forward as a ground for relocation, there is now a diamond mine in the southeast of the reserve, a planned copper–silver mine in the northwest, and several mining prospects pending elsewhere.

60 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya Comm No 276/2003 (2010).

61 ibid, para 178.

62 ibid, para 270.

63 ibid, para 135.

64 ibid, para 129.

65 ibid, para 129.

66 For a review and references, see Salomon, M and Sengupta, A, ‘The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples’ (Minority Rights Group International 2003); Aguirre, D, The Human Right to Development in a Globalized World (Routledge 2008); De Feyter, K, World Development Law (Intersentia 2001); Salomon, M, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford University Press 2007).

67 Endorois Case (n 55) para 277.

68 Mondorosi, Sukenya and Soitsambu Village Councils v Tanzania Breweries Limited, Tanzania Conservation Ltd, Ngorongoro District Council, Commissioner for Lands and Attorney-General (Tanzania), see <http://minorityrights.org/law-and-legal-cases/mondorosi-sukenya-and-soitsambu-village-councils-v-tanzania-breweries-limited-tanzania-conservation-ltd-ngorongoro-district-council-commissioner-for-lands-and-attorney-general-tanzania/>.

69 See ‘MRG Deeply Disappointed by Arusha Court Land Rights Judgment against Loliondo Maasai’ at <http://minorityrights.org/2015/10/28/mrg-deeply-disappointed-by-arusha-court-land-rights-judgment-against-loliondo-maasai/>.

71 See eg ‘The Batwa Declaration to the Government of the Republic of Uganda on Securing their Land Rights’ at Kisoro 2009, available at <https://uobdu.files.wordpress.com/2011/05/declaration-signed.pdf>.

72 See D Jackson, ‘Implementation of International Commitments on Traditional Forest-Related Knowledge: Indigenous Peoples’ Experiences in Central Africa (Forest Peoples Programme 2004).

73 For references, see the Constitution of the organization available at <https://uobdu.files.wordpress.com/2011/05/uobdu-constitution-dec-09.pdf>.

74 Sapignoli, M and Hitchcock, R, ‘A Chronology of the Central Kalahari Game Reserve: Update III, 2002–2012’ (2013) 45 Botswana Notes and Records 52.

75 Saugestad, S, ‘Impact of International Mechanisms on Indigenous Rights in Botswana’ (2011) 15(1) IJHR 37.

76 The lack of funding means that now the organization First People of the Kalahari which was set up to support the court action has run out of money and closed down.

77 See Hitchcock, R and Enghoff, M, Capacity Building of First People of the Kalahari: An Evaluation (International Work Group for Indigenous Affairs 2004).

78 Sapignoli, M, ‘Dispossession in the Age of Humanity: Human Rights, Citizenship, and Indigeneity in the Central Kalahari’ (2015) 25(3) Anthropological Forum 285.

79 See M Sapignoli, Local Power through Globalized Indigenous Identities: The San, the State, and the International Community (unpublished PhD thesis, Essex University 2012).

80 See Working Group on Indigenous Populations/Communities in Africa, Mission to the Republic of Botswana, 15–23 June 2005. Available at <http://www.achpr.org/states/botswana/missions/indigenous-2005/>.

81 See African Commission on Human and Peoples’ Rights, Concluding Observations and Recommendations on the Initial Periodic Report of the Republic of Botswana, Forty-Seventh Ordinary Session, 12–26 May 2010. Available at <http://www.achpr.org/files/sessions/47th/conc-obs/1st-1966-2007/achpr47_conc_staterep1_botswana_2010_eng.pdf>.

82 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, The Situation of Indigenous Peoples in Botswana, UN Doc A/HRC/15/37/Add.2 (June 2010).

83 See Solway, J, ‘Human Rights and NGO ‘‘Wrongs’’: Conflict Diamonds, Culture Wars, and the ‘‘Bushman Question’’’ (2009) 79(3) Africa 329; Saugestad, S, ‘Impact of International Mechanisms on Indigenous Rights in Botswana’ (2011) 15(1) IJHR 37.

84 Saugestad (n 83) 56.

85 ibid 44.

86 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (n 9).

87 For illustrations, see S Herencia Carrasco, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’ (2015) Special Edition Revue Québécoise de Droit International 199. See also J Gilbert, Strategic Litigation Impacts on Indigenous Peoples’ Land Rights (Open Society, Justice Initiative 2017).

88 See Marlin, R, ‘“The Endorois Decision” – Four years on, the Endorois Still Await Action by the Government of Kenya’ (Minority Rights Group 2014).”

90 Sapignoli, M, ‘Dispossession in the Age of Humanity: Human Rights, Citizenship, and Indigeneity in the Central Kalahari’ (2015) 25(3) Anthropological Forum 18 (references omitted).

This article is based on a presentation given at the Half-Day Workshop on ‘Adjudication and Indigenous Peoples’ organized at Queen Mary University, London in January 2016. The author would like to thanks Chris Kidd, Ben Begbie-Clench, Maria Sapignoli, Lucy Claridge and Paul McHugh for comments on an early draft of the article.

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